Logo Clic

Logo Senior

Logo_Text

Logo Clic

Law Logo

Show All Topics Image

Audio Image

Listen to Audio of this topic (Cantonese only)

歡迎收聽「長者法網智多聲」。在香港,處理精神上無行為能力人士的主要法例,是《精神健康條例》。條例界定了精神上無行為能力人士,可以是精神紊亂或弱智,聽起來好像跟大部份人沒有甚麼關係,但想清楚一點,沒有人可以肯定自己會否患上癡呆症(即腦退化症),變成精神上無行為能力。所以,老友記或家人都不妨了解一下《精神健康條例》的內容,看看這條條例,可以為精神上無行為能力人士和家人,提供甚麼協助。

《精神健康條例》授權有關機關作出命令,委任監護人或受託監管人,協助精神上無行為能力人士及照顧他的人。

那麼「監護」和「受託監管」有甚麼分別呢?簡單來說,監護主要是照顧精神上無行為能力人士的福利,照顧他的日常生活。而受託監管就比較著重處理當事人的財務資產,受託監管人無權代表精神上無行為能力人士,同意接受醫療或牙科治療,亦無權決定他住在哪裡。不過,實際上,管理財產事務和護理治療的事,無可能完全分開處理,所以,受託監管人既然有權支付護老院和醫院的費用,間接也可以決定當事人住在哪間護老院或醫院。總括來看,如果精神上無行為能力的人是比較富裕的話,受託監管應該比較適合,但申請的法律程序亦相對複雜,最好還是找律師幫忙。

無論是監護還是受託監管申請,當局都要先確認當事人是否屬於精神上無行為能力,之後再考慮各種因素,才作出命令。而兩種申請都要依照特定的程序進行,詳情可參考長者社區法網文字版。

有效期方面,監護令的有效期,第一次不會超過一年,至於續期或再次續期的監護令,有效期會由續期起計,不超過三年。如果時間緊迫,監護委員會有權作出緊急監護令,這種監護令的有效期不會超過三個月。但受託監管人的命令,就不會訂明固定任期。受託監管人可以獨立行事,但會受到法庭監督,每年要向法庭呈交財產明細表。跟監護令一樣,如果情況緊急,法庭可以委任臨時接管人先接管財產,再等待進行法庭程序。如果想了解更多監護和受託監管,記得到我們的網頁慢慢看了。拜拜。

-+=
  1. If the Court is satisfied that the person concerned is incapable, by reason of mental incapacity, of managing and administering his/her property and affairs, the Court may appoint a committee of the estate of that person for the maintenance or other benefit of him/her and his/her family and for administering his/her property and affairs. The Court also has the power to make such orders and give such directions and authority as it thinks fit for such purposes and, in particular, may for those purposes make orders or give directions or authority for:

    1. the control and management of any property of the mentally incapacitated person, including such orders, directions or authority in respect of the transfer or vesting of property or the payment into or lodgment in the Court of money or securities; 
    2. the sale, exchange, charging or other disposition of, or dealing with, any property (including the business premises) of the mentally incapacitated person;
    3. the acquisition of any property in the name or on behalf of the mentally incapacitated person;
    4. the settlement of any property of the mentally incapacitated person, or the gift of any property of that person to any other person;
    5. the execution for the mentally incapacitated person of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made in a will executed by that person if he/she were not mentally incapacitated;
    6. the carrying on by another suitable person of any profession, trade or business of the mentally incapacitated person;
    7. the dissolution of a partnership of which the mentally incapacitated person is a member;
    8. the carrying out of any contract entered into by the mentally incapacitated person;
    9. the conduct of legal proceedings in the name of the mentally incapacitated person or on his/her behalf;
    10. the reimbursement out of the property of the mentally incapacitated person, with or without interest, of money applied by any other person either in payment of the mentally incapacitated person’s debts (whether legally enforceable or not) or for the maintenance or other benefit of the mentally incapacitated person or members of his family or in making provision for any other person or for any purposes for whom or for which he/she might be expected to provide if he/she were not mentally incapacitated; and
    11. the exercise of any power (including the power to consent) vested in the mentally incapacitated person, whether beneficially, or as guardian or trustee, or otherwise.
  2. Once appointed, the committee must operate independently and must not be influenced by opinions from other relatives of the mentally incapacitated person. Further, the committee is subject to the supervision of the Court and, if necessary, may seek direction from the Court as to how the property and affairs are to be managed.
  3. Unlike a guardianship order, which contains a fixed term for the guardianship (one year for the first appointment and not more than three years for subsequent renewal), an order appointing a committee does not impose a fixed term. This is consistent with the idea that the committee is to operate independently, though under the supervision of the Court.
  4. Since the prime objective of the appointment of a committee is to preserve the value of the property of the mentally incapacitated person, the committee is required to file annual accounts of the estate of the person to the Court.
  5. It should be pointed out that while a committee does not have the power to authorize or consent to any medical or dental treatment for the mentally incapacitated person, this does not mean that the mentally incapacitated person would be helpless if urgent medical treatment is required. The Mental Health Ordinance (Chapter 136 of the Laws of Hong Kong) provides that “treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person…without consent…if that registered medical practitioner or registered dentist intending to carry out or supervise the treatment considers that as a matter of urgency that treatment is necessary and is in the best interests of the mentally incapacitated person”. For non-urgent treatment, the committee can make an application to the Court anytime for consent to the carrying out of special treatment.